FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26PR-15-27]
HONORABLE STEPHEN CHOATE, JUDGE
Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for
Lawrence C. Honeycutt, for appellees.
RAYMOND R. ABRAMSON, Judge
and Jeremy Clark appeal the Garland County Circuit Court
order dismissing their motion to set aside the adoption
decree of their daughter E.C. in favor of George and Dawn
Clark. On appeal, Kimberly and Jeremy argue that the circuit
court erred in denying their motion because they did not
receive notice of the adoption petition in violation of their
due-process rights. We agree and reverse and remand.
was born on February 15, 2006, to Kimberly and Jeremy. George
and Dawn are Jeremy's parents. On January 14, 2015,
George and Dawn filed a petition for adoption of E.C. in the
Garland County Circuit Court. In the petition, they alleged
that they were E.C.'s legal guardians and that they did
not know the whereabouts of Kimberly and Jeremy. They
attached the order appointing them guardians of E.C., which
had been entered on July 19, 2012. They further alleged that
Kimberly and Jeremy had not had contact with E.C. since
December 2012 and that Kimberly and Jeremy's consent to
the adoption was not required under Arkansas Code Annotated
section 9-9-207 (Repl. 2015). Because they did not know the
whereabouts of Kimberly and Jeremy, George and Dawn published
notice of the adoption petition in the Sentinel
Record on March 14 and March 21, 2015. They did not
otherwise serve Kimberly and Jeremy with the petition.
March 31, 2015, the court held a hearing. Kimberly and Jeremy
did not appear. George testified that E.C. was removed from
Kimberly and Jeremy's custody in April 2012 in a
dependency-neglect proceeding and that he intervened in that
proceeding to obtain a guardianship of E.C. Dawn testified
that she had not seen Kimberly and Jeremy in one or two
years. The court took judicial notice of the
dependency-neglect case and the guardianship order, and the
court orally granted the adoption.
April 1, 2015, the circuit court entered a final adoption
decree. In the decree, the court noted that Kimberly and
Jeremy did not appear for the final hearing. The court
further found that their consent to the adoption was not
required pursuant to section 9-9-207.
December 13, 2016, Kimberly and Jeremy filed a motion to set
aside the adoption decree. They asserted that the decree
violated their due-process rights because they did not
receive notice of the petition. They further alleged that
they had frequent communication with George, Dawn, and E.C.
and that they had not waived consent to the adoption.
January 13, 2017, George and Dawn filed a motion to dismiss
Kimberly and Jeremy's motion to set aside the adoption.
They asserted that Kimberly and Jeremy's motion was
barred by the statute of limitations as set forth in Arkansas
Code Annotated section 9-9-216(b).
January 13, 2017, George and Dawn filed a response to
Kimberly and Jeremy's motion to set aside the adoption.
In the response, they stated that they had originally
obtained temporary custody of E.C. through the
dependency-neglect proceedings on April 19, 2012, and that on
April 27, 2013, the Arkansas Department of Human Services
("DHS") provided Kimberly and Jeremy a case plan
that stated, "Relative guardianship will be the
concurrent permanency plan for [E.C.] if Jeremy and Kimberly
are unable to complete the requirements of the case plan to
the satisfaction of the Court." They asserted that
Kimberly and Jeremy did not comply with the case plan. They
further pointed out that the guardianship order provided that
the guardianship could not be set aside without notice to,
and the consent of, DHS. On January 18, 2017, the court
entered an order granting George and Dawn's motion to
dismiss Kimberly and Jeremy's motion to set aside the
January 19, 2017, Kimberly and Jeremy filed a motion to set
aside the court's January 18, 2017 order. They complained
that they did not have an opportunity to respond to George
and Dawn's motion to dismiss their motion to set aside
the adoption. The court did not enter a written order, and
the motion was deemed denied on February 18, 2017.
Accordingly, on March 20, 2017, Kimberly and Jeremy filed
their notice of appeal.
review probate proceedings de novo, but we will not reverse
the decision of the probate court unless it is clearly
erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d
359 (2001); Blunt v. Cartwright, 342 Ark. 662, 30
S.W.3d 737 (2000). When reviewing the proceedings, we give
due regard to the opportunity and superior position of the
circuit court to determine the credibility of the witnesses.
Id. Similarly, we review issues of statutory
construction de novo, as it is for this court to determine
what a statute means. Burch v. Griffe, 342 Ark. 559,
29 S.W.3d 722 (2000). Thus, we are not bound by the circuit
court's construction; however, in the absence of a
showing that the circuit court erred, its interpretation will
be accepted as correct on appeal. Id.
and Jeremy argue that the circuit court erred by not setting
aside the adoption decree because they failed to receive
notice of the adoption petition in violation of their
due-process rights. They recognize that Arkansas Code
Annotated section 9-9-216(b) provides that, upon the
expiration of one year after the entry of an adoption decree,
the decree cannot be questioned for failure to give the
required notice. They further concede that they filed their
motion to set aside the petition more than a year after its
entry. However, they assert that the adoption should be set
aside because they did not receive the required ...